ACLU, SLDN and Lambda Legal Urge Military's Highest Court to Strike Down Law Banning Consensual Sodomy

October 2, 2003 12:00 am

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WASHINGTON — Just months after the U.S. Supreme Court struck down all laws prohibiting consensual sodomy in the nation, the American Civil Liberties Union, Servicemembers Legal Defense Network and Lambda Legal Defense and Education Fund are urging the military’s highest court to strike a similar law from its code of conduct.

The military sodomy law, Article 125, applies both to heterosexual and homosexual sodomy regardless of where the act takes place, meaning that even married couples could be prosecuted for committing sodomy in the privacy of their own home.

Technical Sergeant Eric Marcum was convicted of engaging in consensual sodomy with a fellow airman of the same sex in the privacy of Marcum’s own home. In June, the U.S. Supreme Court issued a decision in Lawrence v. Texas which struck down sodomy laws nationwide and provides a right to privacy for all citizens. The friend of the court brief filed by the groups today argues that in light of this decision Article 125 of the Uniform Code of Military Justice, the military sodomy law, must be struck down as well.

A second friend of the court brief was also filed by noted military sociologist Charles Moskos and eight other social scientists and military experts. Their brief disputes the military’s assertion that decriminalizing consensual sodomy would undermine unit cohesion or military effectiveness.

“”While the military should have the right to regulate the conduct of its personnel to ensure that military operations run smoothly, it has no business interfering in the private, consensual sex lives of our troops,”” said James Esseks, Litigation Director of the Lesbian and Gay Rights Project of the ACLU.

“”What a servicemember chooses to do while off duty in the privacy of his or her own home has absolutely no effect on national security,”” added Art Spitzer, Legal Director of the ACLU National Capital Area.

“”The government should not imprison people for private, consensual, adult conduct,”” said SLDN Executive Director C. Dixon Osburn. “”Those who serve our country deserve better than to be subject to a law that is now obsolete.””

“”This law makes it a crime to have consensual sex behind closed doors-and carries prison terms greater that violent crimes like attempted homicide,”” said Pat Logue, Interim Legal Director for Lambda Legal and one of the lead attorneys who handled the Lawrence case for Lambda Legal. “”The U.S. Supreme Court said that these laws violate a fundamental right to privacy.””

Oral arguments are scheduled for October 7. A decision from the court could come as soon as the end of the year.

In 2001, a blue ribbon panel chaired by retired Judge Walter T. Cox III was tasked to review the Uniform Code of Military Justice (UCMJ) on its fiftieth anniversary. Calling military sodomy prosecutions “arbitrary, even vindictive,” the Cox Commission recommended that Congress repeal Article 125 and replace it with a statute governing sexual abuse similar to laws adopted by many states and in Title 18 of the United States Code. Congress has not acted on the Commission’s recommendations and the law remains in effect. Judge Cox had previously upheld the military’s sodomy law in U.S. v. Fagg, holding the court was bound by Bowers v. Hardwick, which upheld Georgia’s sodomy law. The U.S. Supreme Court has since explicitly overruled Bowers in the recent Lawrence decision.

At least two other cases are moving forward that challenge the military sodomy law. Both of the cases involve heterosexual sodomy. United States v. Edwin J. Christian is currently before the Navy-Marine Corps Court of Criminal Appeals and United States v. Private (E2) Anthonynoel S. Meno is currently before the U.S. Army Court of Criminal Appeals.

The American Civil Liberties Union (ACLU) is our nation’s guardian of liberty, working daily in courts, legislatures and communities to defend and preserve the individual rights and liberties guaranteed to all people in this country by the Constitution and laws of the United States.

Servicemembers Legal Defense Network (SLDN) is a national, non-profit legal services, watchdog and policy organization dedicated to ending discrimination against and harassment of military personnel affected by “Don’t Ask, Don’t Tell” and related forms of intolerance.

Lambda Legal is a national organization committed to achieving full recognition of the civil rights of lesbians, gay men, bisexuals, transgendered people, and people with HIV or AIDS through impact litigation, education and public policy work.

The ACLU brief in the case is online at /node/35044

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